All Eyes on Virginia as Lawmakers Face Major Surveillance Decisions

All Eyes on Virginia as Lawmakers Face Major Surveillance Decisions

Virginia may be home to the Central Intelligence Agency, the Drug Enforcement Administration, and the FBI National Academy, but it could also soon be home to some of the toughest regulations on local law enforcement use of surveillance technologies.

All lawmakers need to do is stand up to the governor.

This legislative session, the Virginia General Assembly passed a series of bills to protect its citizens’ privacy from a variety of emerging police technologies. Gov. Terry McAuliffe has already signed legislation requiring police to get a warrant before using devices commonly known as “Stingrays,” to track cell phone users in real time. But the governor sent two other sets of bills regarding drones and Automatic License Plate Readers (ALPR) back to the General Assembly with proposed amendments that would significantly weaken the bills' privacy protections.

On April 15, Virginia lawmakers will decide whether to stand up for privacy. If they reject the governor’s amendments with a simple majority, the bill goes back to the governor, who still can veto the bills. But if a two-thirds majority passes the bills without the amendments, they will pass into law regardless of the governor’s position.

We’re calling on all Virginians to tell their lawmakers to stand up for privacy by passing these bills for a second time and making them veto-proof. Send an email now.

Warrants for Drones

Two years ago, the Virginia General Assembly placed a moratorium on police use of drones to give lawmakers time to pass appropriate regulations. The moratorium expires July 1, 2015.

In anticipation of that deadline, the General Assembly passed H.B. 2125 and S.B. 1301. These bills would broadly require law enforcement to get a warrant before using unmanned aerial systems.

The legislation includes a few special exceptions, such as Amber Alerts (when a child goes missing), Senior Alerts (when a senior adult goes missing), and Blue Alerts (when a police officer is seriously injured or killed). The legislation does allow government agencies to use drones for non-law enforcement purposes, such as monitoring wildfires or traffic, without a warrant. However, the regulations would ensure that evidence obtained by drones without a warrant is not admissible in court. In addition, the bill prohibits state and local governments from deploying weaponized drones except at two special testing/training facilities.

The governor sent the legislation back to the General Assembly with a few small amendments that could make a huge difference to Virginians’ privacy.

Rather than require a warrant for all law enforcement use of drones, the governor's amendments only require warrants for “active criminal investigations,” leaving the door open for persistent, untargeted drone surveillance. Rather than ban the use of evidence collected without a warrant by drones, the governor's amendments created a procedural loophole where otherwise forbidden evidence could be introduced under a different set of legal standards.

As the ACLU of Virginia told the governor [PDF]: “If the amendments are not rejected by the legislature, which we hope that they will be, there will effectively be no warrant requirement for drones in Virginia, and the language requiring a a warrant for drone use fill be meaningless and a virtual sham on the public.”

Limits to ALPR

In 2013, Virginia Attorney General Ken Cuccinelli issued a formal legal opinion [PDF] to the state police about Automatic License Plate Readers, high-speed camera systems that are capable of scanning and collecting thousands of data points on drivers each day. Cuccinelli concluded that “passive” collection of driver information through ALPRs was not lawful under Virginia’s data privacy laws. To put it another way: police could use ALPRs for targeted investigations, but they couldn’t just put these high-speed cameras on patrols cars and traffic poles to collect information on everyone, without suspicion, for future potential use.

With H.B. 1673 and S.B. 965, the General Assembly spelled out that police can’t use mass surveillance technologies, including ALPR or future technologies, to collect personal information on Virginians when the collection isn’t connected to a criminal investigation. With ALPR, police would not be allowed to keep passively collected data for more than seven days.

That could be the shortest ALPR retention period enacted into state law anywhere in the country. However, the governor’s amendments would allow police to hold passively collected ALPR data for 60 days and, as the ACLU explained, “disseminate it to other agencies without limit.”

Surveillance on the Spot

We’re not asking Virginia’s lawmakers to pass a legislative package from scratch. These bills were already passed once before with overwhelming majorities. Instead, we’re asking them to stand by their convictions and pass the bills a second time, without allowing the governor to second-guess the privacy interests of regular Virginians.

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